Court No. - 4
Case :- WRIT - C No. - 14965 of 2019 petitioners :- Vrindavan Lawn Limited Laibility Partnership Respondent :- Union Of India And 5 Others Counsel for petitioners :- Arvind Srivastava,Akash Deep Srivastava,Sharique Ahmed Counsel for Respondent :- A.S.G.I.,Anoop Singh,C.S.C.,Pradeep Kumar Tripathi,Sanjay Kumar Om,Saurabh Srivastava
Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.
Learned counsel for the petitioners is permitted to implead the Estate Officer, Station Head, Kanpur Cantt., Kanpur Nagar as respondent no. 7. Notice on his behalf has been accepted by learned Additional Solicitor General of India.
Rejoinder affidavit filed in the Court today is taken on record.
Heard Sri Shashi Nandan, Senior Advocate assisted by Sri Sharique Ahmad and Sri Arvind Srivastava, learned counsel for the petitioners, Sri Sanjay Kumar Om, learned counsel for respondent nos.1, 2, 3 and 4 and learned standing counsel for respondent no. 5 and Sri Saurabh Srivastava for respondent no.6.
This writ petition has been filed by the petitioners with the following prayers:
"(i) issue a writ, order or direction in the nature of mandamus restraining the respondent nos.2 to 4 from interfering in the petitioners's possession over the municipal plot no.128/YV/7A, Kidwai Nagar, Virat Nagar, Kanpur Nagar forming part of arazi no.2014M situated in Juhi Kalan, Kanpur Nagar.
(ii) issue a writ order or direction in the nature of mandamus commanding the respondent nos.2 to 4 not to evict the petitioners or demolish the petitioners's temporary construction existing over the pot in dispute.
(ii-A) to issue a writ, in the nature of certiorari quashing the notice dated 15.4.2019 issued by Defense Estate Officer, Station Head Quarter Kanpur Cantt. (Annexure No.1).
(ii-B) to, issue a writ, in the nature of certiorari quashing the entire proceedings being case file No.246/130/B.M.R.-R/PC/01/2019 dated 15-4-2019 in pursuance to the notice dated 15-4-2019 issued by Defense Estate Officer, Station Head Quarter, Kanpur Cantt."
It is contended by learned counsel for the petitioners that the land in respect of which the impugned notice dated 15.4.2019 has been issued under Section 4 (1) and 4 (2) (b) (ii) of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the “Act”), calling upon the petitioners to show cause why an order of eviction should not be made against them on the ground that the petitioners are in unauthorized possession of Plot No. 128/YV/7A, Kidwai Nagar, Virat Nagar, Kanpur Nagar which is part of Arazi No. 2014 M, is a public premises (hereinafter referred to as the “disputed land”) within the meaning of Section 2 (e) (2) (vii) of the Act, is per se illegal and without jurisdiction in view of the fact that the original recorded owner of the disputed land was one Smt. Manjun, wife of Adul Sattar, who had transferred an area of 04 bighas of the disputed plot in favour of Nagar Samaj Sahkari Awas Samiti Limited by two sale-deeds dated 5.12.1985 and 7.10.1986, copies whereof have collectively been brought on record as Annexure 3 to the affidavit accompanying the writ petition. He next submitted that an application was moved on 10.2.2006 on behalf of the cooperative society for demarcation of the part of the disputed plot No. 2014 which had been purchased by it from Smt. Manjun, when the land in dispute was included within the territorial jurisdiction of the Kanpur Development Authority, Kanpur and eventually part of the disputed land purchased by the cooperative society was separated from that part of the disputed land, which had remained under the possession and ownership of the original recorded owner. He further submitted that out of the total area of 7497 sq. yard of Arazi No. 2014 of cooperative society, the petitioners had purchased 2220 sq. yard by two registered sale deeds dated 30.3.2016 and 30.3.2017, copies whereof have been brought on record collectively as Annexure 7 to the writ petition and the land purchased by the petitioners was demarcated on the spot with distinct boundaries and a separate no. 128/YV/7A was allotted by Kanpur Development Authority to the petitioners’ plot, as is evident from documents appended as Annexure 8 to the writ petition. He further contended that Arazi No. 2014 M is a huge arazi having an area of 84 bighas and apart from the area of the land of Arazi No. 2014 M, the remaining area of Arazi No. 2014 is recorded as “chandmari” of Army. He referred to the copy of Khasra of non-Z.
A. Plot No. 2014 M, which is annexed as Annexure 12 to the affidavit accompanying the writ petition. He also submitted that in view of the fact that the land which was purchased by the petitioners from the cooperative society, after the cooperative society had got the disputed land purchased by it from Smt. Manjun, demarcated on the spot and it being evident from the perusal of the Annexure 12 referred to above, that the land purchased by the petitioners, is not part of Arazi No. 2014, which is recorded as “chandmari” of Army and since a bonafide dispute with regard to the title of the plot in dispute is involved, cannot be decided in summary proceedings u/s 4 of the Act, the impugned notice issued by the respondents in his purported exercise of powers under Section 4 (1) and 4 (2) (b) (ii) of the Act illegally treating the petitioners' plot as public premises, is per se illegal and totally without jurisdiction, hence, is liable to be quashed.
In support of his contentions, learned counsel for the petitioners has relied upon Manju Agrawal Vs. A.D.J., Meerut reported in 2014 (9) ADJ19, Kaikhosrou (Chick) Kavasji Framji and Ors. Vs. Union of India (UOI) and Ors. reported in AIR 2019 SC 1692, and Government of Andhra Pradesh Vs. Thummala Krishna Rao & Anr reported in 1982 AIR 1081.
Sri Sanjay Kumar Om, learned counsel appearing on behalf of respondent nos. 1, 2, 3, 4 and 7 submitted that the documents appended by the petitioners do not conclusively establish that the petitioners' land, which he is claiming to be his own, is not a public premises and moreover, the issue relating to the jurisdiction can only be decided on the basis of the evidence on record, which the parties may adduce before the Estate Officer and in the instant case, the petitioners have already filed objections before the respondent no. 7, copy whereof has been brought on record as Annexure R. A.-1 to the short rejoinder affidavit filed in reply to the short counter affidavit filed by the contesting respondents and without waiting for the decision of the respondent no. 7 on the aforesaid objection, the petitioners have rushed up to this Court invoking its extraordinary jurisdiction, hence the writ petition is liable to be dismissed at this stage as premature.
In rejoinder, learned counsel for the petitioners reiterated the contentions made by him earlier. In addition, he has contended that the respondents are acting in a very high handed manner and without waiting for the decision of the Estate Officer on the objection filed by the petitioners, have proceeded against the petitioners and tried to dispossess them from their plot and when the aforesaid fact was brought to the notice of this Court, an interim order directing the parties to maintain status-quo over the property in dispute and not to dispossess the petitioners, was passed in favour of the petitioners and in case, this Court is inclined to relegate the petitioners back to the respondent no. 7 for adjudging the issue of lack of jurisdiction by him, the interim order which was passed in favour of the petitioners by this Court, may remain in operation.
We have heard learned counsel for the parties and perused the law reports cited by learned counsel for the petitioners in support of this contention.
In the case of Manju Agrawal (supra), notices were issued against Manju Agrawal u/s 5A and 5B of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, hereinafter referred to as “Section 5A and 5B of the Act”, alleging that constructions raised by her were unauthorized and without permission of the competent authority as land being Old Grant held by the Government was a public premises.
The order of eviction was passed pursuant to the said notice against Manju Agrawal which was challenged in appeal. The appeal was also dismissed. The orders of the prescribed authority and the appellate authority were challenged by Manju Agrawal and the writ petition was allowed by learned Single Judge of this Court holding that the case in hand involved a serious dispute of title and in view of the above, the summary proceedings under Section 5A and 5B of the Act were not maintainable and the respondent authorities should have resorted to have got their rights declared in common law proceedings i.e. by filing a suit.
In the case of Kaikhosrou (supra), a notice was issued u/s 4 (1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 in respect of the property situated at Survey No. 417, Bungalow No. 17, Dr. Coyaji Road (formerly known as “Elphinstone Road”) Pune- 411001, owners whereof were Burjorji Goostadji and Cooverbal Homi Karani who had sold the said property to one Mr. Mohammad Hajibhoy by indenture of conveyance dated 01.03.1920 pursuant to the order of the District Judge made on a Misc. Application No. 5 of 1919 granting sanction for the sale in favour of Mr. Mohammad Hajibhoy who had even sold the said property to one Mr. Kaihosrou Sorabji Framji by indenture of conveyance dated 28.11.1923 who in turn leased out the suit property on 10.10.1929 to the Government of India for a period of five years on rent of Rs. 110/- per month with regard to portion of which Union of India issued a resumption notice on 21.01.1971 on the allegation that the property was held under Old Grant and hence, the Union of India had ordered to appear to resume it. The notice was challenged before the High Court in a writ petition which was dismissed. The intra-court appeal against the order of the learned Single Judge was also dismissed. In view of the facts and material on record of the case, the bonafide dispute of title was evident and there was no conclusive evidence disclosing that the property which was the subject matter of the notice was held under the Old Grant.
The third case Thummala Krishna Rao (supra) arose out of final order passed in proceedings initiated u/s 6 of the Andhra Pradesh Land Encroachment Act, 1905 wherein the Apex Court had held the question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit.
As far as the legal principles culled out from the perusal of the three authorities relied upon by the learned counsel for the petitioners are concerned, there cannot be any quarrel with the same. However, two, out of three verdicts relied upon by the learned counsel for the petitioners were rendered in cases arising out of final orders passed under the provisions of Section 5A and 5B of the Act and u/s 6 of the Andhra Pradesh Land Encroachment Act, 1905.
As far as the case relied upon by the learned counsel for the petitioners in Kaikhosrou (supra) is concerned, in the said case, the Apex Court upon noticing that there was ample proof of title and possession of Mr. Kaikhosrou Sorabji Framji which related back to the year 1921, quashed the impugned notice holding that the matter involved a bonafide dispute of title which could only be decided in a properly instituted suit.
The issue whether the respondent no. 7 lacks jurisdiction to issue notice under Section 4 (1) and 4 (2) (b) (ii) of the Act on the premise that the land in dispute is a public premises within the definition of Section 2 (e) (2) (vii) of the Act and a bonafide dispute of title between the parties is involved, in our opinion, can be best looked into and decided by the respondent no. 7 on the basis of the material adduced by the parties before him.
In view of the foregoing discussion, we, while refusing to interfere with the impugned notice at this stage, dispose of this writ petition with the direction to the respondent no. 7 that before proceeding to examine and decide the matter on merits, he shall first decide the objection dated 27.5.2019 filed by the petitioners, copy whereof has been brought on record as Annexure R. A.-1 to the short rejoinder affidavit filed in reply to the short counter affidavit filed by the contesting respondents, within a period of six weeks from the date of filing of certified copy of this order by a reasoned and speaking order, which shall be communicated to the petitioners within forty eight hours. It is further directed that for a period of eight weeks, the parties shall maintain status quo as on date with regard to the nature and possession over the land in dispute.
It is made clear that we have not expressed any opinion on the merits of the case.
Order Date: 28.11.2019 KS